The verdict was read out in the Derek Chauvin trial—Guilty, Guilty, Guilty—and inspired feelings of relief, vindication, and a creeping sense of unease and disappointment. Chauvin is one of the few American police officers ever to have faced a fair trial for his misdeeds; individualized justice was done. But the Chauvin trial didn’t captivate the nation as a test of individualized justice; it had become a symbol of social justice. Like Adolf Eichmann on trial in Jerusalem, Chauvin was a man who had come to symbolize a monstrosity. This raised the stakes, and it also raised troubling questions. Could a criminal court convict the criminal justice system? On the other hand, by convicting one man, could the court vindicate the system?
The denouement of the Chauvin trial was destined to disappoint: The court, after all, could try only the man in the dock. But the culpability of individuals is only a small part of America’s broken criminal justice system.
Inevitably, Chauvin came to personify the sadism and racism of this system. The kind of dramatization of a social problem that the trial provided was natural, since most people come to understand the world through stories. But turning the violence of law enforcement into a story of personality—of motivations, mental states, and atavistic prejudice—spins a narrative that is both too harsh and too comforting at once. It is too harsh because if Chauvin personifies law enforcement, his mindless and needless cruelty demonstrates that the entire criminal justice system is nothing more than a knee on the windpipe of Black people. It is too comforting because, if we see Chauvin as the avatar of discriminatory law enforcement, his trial offers a model for ending the phenomenon. If the Chauvin verdict found the law itself guilty, perhaps the law can condemn, punish, and deter its own racism, just as it does individual wrongdoing. The verdict seems to promise that the law can confine racism and keep it off the streets like a violent criminal.
But the racial injustices of law enforcement are not like an individual’s bad attitudes, and the criminal justice system cannot so readily purge its own injustices. Racial injustice runs through our legal institutions like veins in a slab of marble, the bigotry mixed with defensible or even benign purposes. Thinking of racially biased criminal law enforcement as if it had a single, discrete, and easily condemned cause like “racism” leads to unequivocal condemnations of morally ambiguous practices and to simplistic reform proposals that are doomed to fail or backfire.
It is now a commonplace, for example, that modern policing emerged from, or was based on, patrols that were organized to capture escaped slaves in the antebellum South. In this narrative, there is an unbroken line from the antebellum slave patrols to the racial disparities that mark today’s aggressive policing. While there is truth in this claim, it oversimplifies a more complex history. The “slave patrol” narrative also suggests, too optimistically, that we can reform or even abolish policing at little real cost because its primary function is, unambiguously, morally abhorrent.
But although racism played a role, the development of modern policing was largely a reaction to urbanization and industrialization. In Europe as well as the United States, aggressive and comprehensive policing was a response to the entry of a rural peasant class into urban environments in large numbers. Police were one of many organizations designed for the coercive socialization of people who were accustomed to relatively unstructured village and rural life and would now have to adjust to the rigors of the factory, the rhythms of the city, and the norms of bourgeois society, as well as schools, the military, and factories. Black Americans fleeing the degradations and exploitation of the Jim Crow system met with all of the hardships suffered by earlier urban migrants plus the distinctive ones born of racial animus. Further, in the 1960s and 1970s, at the end of the Great Migration, the economy was slowing and industrial jobs were leaving cities for suburban industrial parks. Unemployment was severe and chronic among Black people, who faced discrimination on top of a weak labor market. Thus, the famous 1963 March on Washington was for Jobs and Freedom.
Some of those jobless people, of all races, did what some jobless people everywhere have always done: They turned to crime. Thus, in the late 1960s and 1970s, American cities faced one of the most significant crime waves in their history. A criminal justice crackdown followed. In an understandable zeal to condemn it, some people ignore or even deny this. But at the time, many observers of all races agreed that crime was a serious menace and eventually supported aggressive policing as a response.
To be clear, rising crime, like the joblessness that caused it, was by no means an exclusively or even primarily racial problem: Whites have always far outnumbered Blacks in the nation’s jails and prisons. But crime, like joblessness, was disproportionately concentrated in predominantly minority neighborhoods—and so was the law enforcement response. As a result, Black lawbreakers, whether they were serious criminals or petty miscreants, were—and still are—more likely to encounter police and face sometimes tragic consequences.
Aggressive policing was probably the only expedient readily available to cities faced with the problem of rising crime, but it was not the only possible policy response. A better option would have been to address the causes of crime with an aggressive jobs creation policy on the order of the New Deal, combined with a generous and expanded social safety net as a backstop. But this solution would have been expensive and required federal intervention—which was, needless to say, not forthcoming.
Because law enforcement falls under local administration and anti-poverty policy does not, the nation as whole—but only city by city, police department by police department, district attorney by district attorney—got tough on crime. The costs of this course of action were both dispersed and deferred, making a poor response politically palatable. Because the federal government did not address the underlying poverty and joblessness, local government was left to confront the rising crime that was the effect. Worse yet, police became the public service of last resort: Police were left to deal with not just serious crime but also the petty infractions and disruptions of mental illness, drug abuse, and social dysfunction. This local response to crime drove—and still drives—aggressive policing and mass incarceration, dwarfing federal initiatives like the War on Drugs.
There’s no doubt that racism made policing even more aggressive than it might have been otherwise. And it’s possible that but for racism, the nation would have rejected aggressive policing and embraced a more generous social safety net instead. But that’s not obvious: It was out of self-interest that some rich and powerful political forces opposed social welfare programs and the redistribution they would require. Others opposed such programs in principle, on grounds that they would undermine the recipients’ work ethic.
Today’s punitive and violent law enforcement is not simply the continuation of racist practices like Jim Crow or slavery. It was created, shaped, and intensified by the structure of American government and the changing industrial economy. Some of the motivations for aggressive policing are indeed contemptible, and many are questionable. But in light of the context, others are understandable.
Successful reform will thus require a grasp of not only the horrific consequences but also the mundane causes of aggressive policing. The Derek Chauvin trial dramatized the consequences but may also have reinforced a misleading account of the causes. The evils of aggressive law enforcement are not purely matters of racially motivated over-policing, and they will not be successfully addressed by simply condemning or defunding the police. The problem is less that we spend too much on the police than it is that we spend far too little on other social services.
Some might say that this social neglect is a crime, but no criminal trial will help us understand or correct it.
Richard Thompson Ford, an editorial board member of American Purpose, is George E. Osborne Professor of Law at Stanford Law School. His most recent book is Dress Codes: How the Laws of Fashion Made History (2021).
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